A Constitutional History of the United StatesChapter VII - An Obdurate Parliament and Obstinate Colonies, 1769-1773.byMcLaughlin, Andrew C.

THE GREAT CONTROVERSY BETWEEN GOVERNOR AND LEGISLATURE IN
MASSACHUSETTS

We cannot watch the gathering clouds of trouble in the empire without
seeing the essence of the difficulty. The problem of managing an empire in
which were colonists possessed of political skill and the spirit of freedom was
too big for the brain and temper of British politicians. It is easy enough to
heap blame on wrong-headed ministers and an obstinate king, but the reality to
be grasped is that the social and political order of Britain still tolerated a
government of that particular mental density, unsuited to the job which an
empire of freedom presented. "Magnanimity in politics," said Burke, "is not
seldom the truest wisdom; and a great empire and little minds go ill together."
The classes ruling in society and the state had a firm grasp on the government,
and to those classes the essential principles of America were obnoxious. But
withal, two things need to be remembered: as we have already pointed out, the
problem was inherently difficult; and Britain, if she had nothing else to be
proud of, could well indulge in self-glorification, had she so minded, at the
sight of colonists, the fruit of her own loins, who were so capable in politics
and in reality so free — and that freedom was the product of her own
liberality. Decades had to pass before Britain was in condition to yield in her
own insular structure to the ever-growing forces of popular government. The
tone of public life, the very principles, and practices of the kingdom, though
even then there were symptoms of disquietude, lay beneath parliamentary and
ministerial arrogance. We must be content here with a few facts, briefly
related, which will help in bringing to light the nature of the American
position.

One source of trouble was the British army. Justify as you may the need
or the advisability of its presence in America, the fact remains that a
regiment or two of soldiers in an American town were not considered agreeable
companions. The Quartering Act, which was passed about the time of the Stamp
Act, aroused special opposition in New York where the legislature was calmly
ordered to provide housing and to make provision for the support of the troops.
The situation, when General Gage settled down in the province with his
soldiery, was next to intolerable. The legislature refused to comply fully with
the demands made upon it (1766), and saw fit to debate the question; but that
would never do, and the next year, along with Townshend's revenue acts, came an
act of Parliament suspending the functions of the legislature until it carried
out the terms of the Quartering Act. Even before the news of the measure
reached the colony, the legislature yielded, "saving its face by not itemizing
the 'salt, vinegar, beer or cyder' which were in dispute." [1] But
cider and beer were not the whole of the matter; the measure of repression had
done incalculable harm. It was the natural result of an attitude toward a
social problem; the way to secure obedience is not by conciliation, not by
consideration and affection, but by punishment and above all by steady
adherence to a policy, lest yielding diminish dignity. And this fear and belief
that America was taking advantage of indulgence took possession of many Britons
who were not natively imbued with the qualities of recalcitrant Toryism. But
the Americans, in their turn, were led to inquire whether their legislatures
were, within their customary fields, independent bodies or only agencies of a
government across the sea which could order them to make appropriations as it
saw fit.

Then Hillsborough, indignant at the Massachusetts Circular Letter, sent
out to the other twelve colonies a letter of his own.[2] He would
have none of these efforts to create "unwarrantable combinations" and
"unjustifiable opposition to the constitutional authority of Parliament"; and
the Massachusetts legislature was ordered to rescind its "rash and hasty
proceeding." [3] When the House of Representatives, by a vote of 92
to 17, refused to rescind, the legislature was dissolved; and the next General
Court when chosen contained not 17 but 10 supporters of the
prerogative.[4] Other legislatures hastened in loyal addresses to
announce their adherence to the principles of Massachusetts. Hillsborough's
conduct only strengthened American opposition, brought the doctrines of the
Circular Letter into clearer light, and helped to unify opinion. Thus, thanks
to these unseemly quarrels with the colonial legislatures, the detached
question of the right of Parliament to levy taxes had risen, or degenerated,
into the question whether legislatures could even pass resolutions expressing
in calm and uninflammatory fashion their opinion of the constitution of the
empire.[5] "If the votes of the House", said the Massachusetts
assembly, "are to be controlled by the direction of a minister, we have left us
but a vain semblance of liberty." [6]

Still, despite all this unnecessary and dangerous disputation, it is
conceivable that Britain might have succeeded; for the revenue acts were being
enforced, though not without difficulty and occasional lawlessness. But
Parliament was impatient; it is the nature of fatuous high-handedness to be
impatient. In an address to the throne in 1768 appeared an ominous proposal.
Passed by the Lords, the address went to the Commons (1769) where there was a
debate which was declared to be "very fine indeed", and the address was finally
passed. It suggested the advisability of procuring full information "touching
all treasons, or misprision of treason," and the appointment of a special
commission for "enquiring of, hearing, and determining, the said offences
within this realm, pursuant to ... the statute of the 35th year of the reign of
king Henry the eighth...." A most astounding proposal — to try the
"traitors" of Massachusetts in Britain! The threat aroused opposition in
America. In a series of resolutions, the House of Burgesses in Virginia
asserted once again that the sole right to impose taxes on Virginians was
vested in that house, and that trials for treason ought to be held within the
colony; sending suspected persons across the sea for trial would rob them of
the "inestimable privilege of being tried by a jury from the vicinage...."
[7]

The next step taken by Parliament was the repeal of duties levied by the
Townshend Acts, except a duty on tea (1770). Lord North, who had just come to
the head of the ministry, where he remained for years the obedient servant of
the king, advocated repeal. The acts were "preposterous"; [8] he
would gladly take steps to soothe the angry Americans, but lenience did not
seem to encourage a spirit of obedience; it led to further insult of "our
authority". The tax on tea must be retained. "The properest time to exert our
right of taxation, is, when the right is refused." But there were British
soldiers in America. Boston did not like them; their presence awakened
unpleasant reflections. On the very day that North advocated the repeal of the
Townshend duties, occurred the Boston "massacre"; and the next day came the
stern demand of the citizens that the soldiers be removed to the castle in the
harbor. The spirit of rebellion was waxing strong in the Puritan town.

In 1769, as the legislature refused to carry on business at Boston in
the presence of troops, it was adjourned to meet at Cambridge. Governor Bernard
soon departed for England, and Lieutenant-Governor Hutchinson, who shortly
thereafter was given the full title, was left to meet the waves of discontent.
When he summoned the legislature to Cambridge, the storm broke — not the
storm of riot, but the more trying deluge of argument.[9] Samuel
Adams was on hand to inquire by what authority the Governor acted. Both the
council and the house objected, though on somewhat differing grounds, and
contested at length the Governor's position; for he simply declared that as an
officer of the Crown he could do no other; he must obey instructions. Did
instructions, then, coming from a ministry three thousand miles away give full
justification for the Governor's doing everything that a minister might desire?
If so, what was the value of a charter and wherein lay the authority of the
legislature?

The discussion [10] lasted for months and the months
lengthened into years, ending only in 1772, when the legislature was allowed to
meet again at Boston. And so, because of a needless order from an incompetent
ministry, Massachusetts was taught to consider over and over again the nature
of her institutions and her property in her principles of self-government.
Hutchinson declared that the people who had previously disowned the power of
Parliament now allowed little or no share of government to the king. But this
indictment appears to have been false or at least extravagant in both counts;
certainly, whatever may have been openly said by the irresponsible or covertly
by the more radical leaders, it can hardly be declared that the colonists had
come to these ultimate positions. They had not definitely reached the point of
announcing in any formal and tangible way that Parliament had no power.
Hutchinson himself was to bring them nearly, if not quite, to that declaration.
And the time had not yet come when they were prepared to say that the king had
degenerated into a tyrant. They were, however, easily to be persuaded; but,
while it may to us appear in theory to be a short step from denying the binding
effect of instructions to the denial of royal power, the distance in reality
was considerable. If the colonists were not prepared to renounce allegiance,
petty interference and nagging were likely to arouse the spirit of real
rebellion almost as quickly as would acts of cruelty and
tyranny.[11]

The year 1772 is for some reasons deserving of special notice; it cannot
be passed over without comment. This is true especially because of the activity
of Sam Adams, who, whether he was purposely working for complete independence
or not, was certainly intent upon keeping alive the spirit of resistance to
measures endangering his conception of American liberty.[12] Many
times he used the arguments of which he was fond; he referred to Montesquieu,
and Vattel, and Locke. Of chief interest was his work for the establishment of
committees of correspondence in the towns of Massachusetts, a means of arousing
a common action and sentiment and a common fear of peril. The document adopted
by the town of Boston (November 20, 1772), seemingly the work of Adams, giving
"the Rights of the Colonists and of this Province in particular, as Men, as
Christians and as Subjects", is an able one, sprinkled with plentiful
quotations from the philosophers and asserting the right to freedom to be
inalienable. All this is of consequence to us because it brings out so clearly,
once more, those fundamental notions which were widely held as the basis of
free government — individual right to freedom and property and the
necessity of limited rather than unlimited government.

In 1773, thanks to threats that persons accused of offenses committed in
America should be sent beyond the sea for trial, another important step was
taken, this time by Virginia. That colony recommended the formation of
intercolonial committees of correspondence, and thus on a continental scale
prepared the system which made opposition effective. The union of the colonies
which later became a union of states rested thus at first on community of ideas
fostered, though not begotten, by committees — extra-legal, if not
illegal, bodies — which could present forcibly the spirit of discontent.
Important in our history as opposition is, of importance also is the
development of the mechanism and the practices which secured a degree of
political unity or co÷peration.[13]

In this same year (1773) Governor Hutchinson entered upon a perilous
undertaking. Clothed with wisdom of the law and of history, he dared to argue
with the Massachusetts legislature, to measure swords in reality with Sam
Adams, who in some measure was coached by John Adams, an able and learned
lawyer. The Governor dared to bring forcibly to the attention of an eager
populace the essential nature of the controversy between Great Britain and the
colonies. He was vigorous, talented, and determined, but we still wonder at his
folly. A number of impressive state papers[14] lie before us to-day,
the weapons and the products of the dispute. The Governor's speeches are
perhaps the best single presentation of Britain's case, the ablest arguments
for parliamentary authority. Hutchinson believed he could conquer by argument.
He believed he could convince by reasoning; but where did his reasoning lead?
To the conclusion that the colonists had no rights, no institutions, no
security, if Parliament wished to take them away; all were held by the insecure
tenure of parliamentary grace. Once more the theory of parliamentary
omnipotence must be acknowledged. No self-respecting people, accustomed to
manage their own affairs, could accept such conclusions.

The council's second answer to the Governor is a memorable document; it
is cogent and compelling. What possibilities had Hutchinson's cleverness
conjured up! The councilors insisted on freedom from parliamentary taxation,
but they were not to be drawn by the Governor's forensics to a denial of all
authority. "What is usually denominated the supreme authority of a nation, must
nevertheless be limited in its acts to the objects that are properly or
constitutionally cognizable by it." Thus, they seem to say, in any
constitutionally-organized nation there are legal duties and legal limitations.
There is, in the nature and practices of government, no impossibility of
recognizing those duties and those obligations. This is not quite the old
argument from natural rights and the existence of a constitution that must be
fixed; the council saw the possibility of distributed authority in an organized
empire. The council plainly grasped the principle which in its reasonings had
so far been only reached after, not seized. It referred to Hutchinson's
statement that, "although ... there must be one supreme authority ... , this
constitution will admit of subordinate powers, with legislative and executive
authority, greater or less, according to local and other circumstances." "This
is very true," the council replied, "and implies that the legislative and
executive authority granted to the subordinate powers, should extend and
operate, as far as the grant allows; and that, if it does not exceed the limits
prescribed to it, and no forfeiture be incurred, the supreme power has no
rightful authority to take away or diminish it, or to substitute its own acts,
in cases wherein the acts of the subordinate power can, according to its
constitution, operate. To suppose the contrary, is to suppose, that it has no
property in the privileges granted to it; for, if it holds them at the will of
the supreme power, ... it can have no property in them.... But, as in fact, the
two powers are not incompatible, and do subsist together, each restraining its
acts to their constitutional objects, can we not from hence, see how the
supreme power may supervise, regulate, and make general laws for the kingdom,
without interfering with the privileges of the subordinate powers within it?
And also, see how it may extend its care and protection to its colonies,
without injuring their constitutional rights? What has been here said,
concerning supreme authority, has no reference to the manner in which it has
been, in fact, exercised; but is wholly confined to its general nature."

Here we see a fairly firm grasp of the essentials of federalism. Plainly
the central principle — the distribution of powers among governments
— was taking definite shape in some colonial minds. Though the Parliament
was spoken of as "supreme", we are not justified in supposing that the council
meant by that word complete and all-embracing authority. Such authority was the
very object attacked. The demand was for the recognition of "property"
possessed by the colony — legal security within its legal sphere of
government. And if to the reader this argument seems neither conclusive nor
altogether clear, the fact remains that distribution of authority in the empire
and the recognition of the rights of the colonies as constituent portions of
the empire were asserted. If Hutchinson's reasoning and his conclusions were
legally sound, he nevertheless thrust them unwisely into the faces of a
politically-minded people who had practiced freedom; to dare such a thrust was
a negation of cautious statesmanship. If the colonists, convinced by his
reasonings, were forced to choose between unlimited submission to Parliament
and complete freedom from control, which horn of the dilemma would they
choose?

In the course of his argument, Hutchinson laid down a principle which he
thought was beyond the reach of all denial: "I know of no line that can be
drawn between the supreme authority of Parliament and the total independence of
the colonies: it is impossible there should be two independent Legislatures in
one and the same state; for, although there may be but one head, the King, yet
the two Legislative bodies will make two governments as distinct as the
kingdoms of England and Scotland before the union." Thus he handed out a
principle of political science or philosophy; but men are not always willing to
be governed by the principles of philosophy. Hutchinson, be it noticed, could
not conceive of a government that possessed only limited authority; he could
not conceive of two independent legislatures, not to say two independent
governments, in one and the same state; one must be so distinctly subordinate
to the other as to have no legally indefeasible property in its own
authority.

When Hutchinson boldly threw down the gauntlet, the house eagerly took
it up and, after discussing the general question of the powers of Parliament
over the province, reached the critical point to which the Governor's speech
had forced it. "Your Excellency tells us, 'you know of no line that can be
drawn between the supreme authority of Parliament and the total independence of
the colonies.' If there be no such line, the consequence is, either that the
colonies are the vassals of the Parliament, or that they are totally
independent. As it cannot be supposed to have been the intention of the parties
in the compact, that we should be reduced to a state of vassalage, the
conclusion is, that it was their sense, that we were thus independent. 'It is
impossible,' your Excellency says, 'that there should be two independent
Legislatures in one and the same state.' May we not then further conclude, that
it was their sense, that the colonies were, by their charters, made distinct
states from the mother country? ... there is more reason to dread the
consequences of absolute uncontroled power, whether of a nation or a monarch,
than those of a total independence.

... If your Excellency expects to have the line of distinction between
the supreme authority of Parliament, and the total independence of the colonies
drawn by us, we would say it would be an arduous undertaking, and of very great
importance to all the other colonies; and therefore, could we conceive of such
a line, we should be unwilling to propose it, without their consent in
Congress."

The house appears to admit the possibility of a line of distinction
between complete parliamentary power and the total absence of it, but the net
result was a denial of any authority at all. Cleverly also the hint was given
that the colonies acting together might be able to work out a scheme which
would distinguish between powers and save some remnant of parliamentary
jurisdiction; and what could be more ominous in the eyes of Westminster than a
continental congress? The assertions made by the men of England in their
discussions over the Stamp Act repeal, the declarations continually made that
the denial of one power necessarily involved the denial of all, had now brought
their legitimate and inevitable fruit. The direct and inescapable crisis was
induced under provocation from a cocksure Governor who believed that he could
do more than English pamphleteers, parliamentary orators, and loyalist
newspaper writers had been able to accomplish; he thought that by sheer weight
of metal he could sink the tiny shallop of provincial assumption and could
overwhelm the great incendiary, its commander. Logic may have been on his side
and references to precedent may not have been unavailing; but more than logic
and theory were needed. And on their side, the cohorts of Sam Adams had the
historical fact, even though here and there is was weakened by precedent, that
the Massachusetts legislature did exist, had existed, had legislated, and had
acted as a competent legislative body.

One or two other facts require brief statement. Hutchinson endeavored
with some success to show that the Massachusetts legislature, in times gone by,
had acquiesced in parliamentary legislation. But this, if it be in all respects
true, could not, the house replied, destroy colonial rights, for the
"fundamentals of the constitution" were stipulated in the charter, and they
could not be altered by the legislature. Reference was made to the old favorite
doctrine and to the favorite sentiment which was gathered from Vattel: for the
authority of the legislature — the house maintained — " 'does not
extend so far as the fundamentals of the constitution. They ought to consider
the fundamental laws as sacred, if the nation has not in very express terms,
given them the power to change them. For the constitution of the state ought to
be fixed; and since that was first established by the nation, which afterwards
trusted certain persons with the Legislative power, the fundamental laws are
excepted from their commission.' " Thus once again appeared the doctrine of
fundamental law and an unchanging constitution.[15]

[1] C. H. Van Tyne, The Causes of the War of
Independence, p. 278.

[2] George Bancroft, History of the United States
(last revision), III, p. 284. For Hillsborough's letter as addressed to Rhode
Island, see John Almon, Prior Documents, p. 220.

[5] Consider, for example, the sentiments of South Carolina.
Was an assembly a mere gathering of schoolboys, if such sentiments were to be
held as impertinent or unlawful? See D. D. Wallace, The Life of Henry
Laurens, p. 155.

[6]Massachusetts State Papers, p. 150.

[7] See the Constitution of the United States, amendment VI.

[8] "Preposterous", it seems, chiefly because they were
injurious to British commerce.

[9] The methods and the words of the Massachusetts leaders
may appear to the reader, as he reads over the documents, exceedingly trying,
and he certainly cannot wonder at the irritation or dismay of the Crown's
representatives. But irritation and dismay on the one side and continuing,
skillful, persistent opposition to authority on the other are for us as
students of constitutional history not the center of the matter. Take as just
one example the answer of the house to a statement by Bernard when removing the
General Court to Cambridge. He lamented the "waste of time and treasure to no
purpose." The house replied, "No time can better be employed, than in the
preservation of the rights derived from the British constitution, and insisting
upon points, which, though your Excellency may consider them as non essential,
we esteem its best bulwarks. No treasure can be better expended, than in
securing that true old English liberty, which gives a relish to every other
enjoyment." We should notice they were defending English liberty,
defending the principles of the English constitution. Massachusetts
State Papers, pp. 172-173.

[10] The same kind of discussion had arisen in 1728 when
Governor Burnet called the legislature to meet at Salem. He gave as one reason
the fact that the inhabitants of Boston had in town-meeting declared against
"Setling a Salary". Such "forwardness" set an example to the towns in the
country and was "better adapted to the Republick of Holland than to a British
Constitution." The house contested the right of the Governor to remove the
legislature, but, though protesting, did its work. Journals of the House of
Representatives of Massachusetts 1727-1729, p. 362 ff. Italics of the
original omitted. The discussions furnish an interesting illustration of the
irritation caused by the superior tone of the Governor, and an illustration
also of the determination of the colonists to maintain their rights and to
guard their purses. The principles of the Revolution did not suddenly flock
upon the scene in bright and unknown colors in 1765.

[11] Evidence of the fact that the colonial leaders were not
at this time (1770-1771) bent upon total disruption of the empire is seen in
the fact that in 1773 even the Massachusetts house hurled its arguments not
against the king but against the Parliament, and the papers that came from the
pens of leaders in 1774 were intended to establish the legal position of the
colonies as dominions of the king. Jefferson, it is true, in his "Summary View"
(1774), spoke to King George in no humble tones and found fault with His
Majesty's conduct, but the time had not yet come to declare that the monarch
had at no time legal authority over the colonies. Indeed, the time did not come
at all, for the final charge (1776) was to the effect that the king had abused
his authority and acted illegally by giving his consent to acts of "pretended
legislation", and he had thus degenerated into a tyrant.

[12] It is often stated that Adams was set upon independence
much earlier than 1772, but his own published writings do not give proof of
that assertion. Perhaps he was so determined, but if so, he kept it well out of
sight, if we can properly judge from the written word. If he was so determined,
his apparent reticence is evidence of the essential loyalty of those to whom he
appealed. To show that his reasoning led or would lead to independence, because
there was no halting place, is not enough. To reason so would be to attribute
to him the very line of reasoning he emphatically denounced. "This is Chronus's
'method of reasoning', to prove that because it is necessary that the
parliament should enact laws for the regulation of trade, about which there has
as yet been no dispute that I know of, ... Therefore, the parliament hath a
right to make laws imposing duties or taxes...." Samuel Adams, Writings
(H. A. Cushing, ed.), II, p. 314. Italics of the original omitted.

[13] See Van Tyne, op. cit., p. 427 ff.; J. M. Leake,
The Virginia Committee System and the American Revolution.

[14] They are to be found in J. K. Hosmer, The Life of
Thomas Hutchinson, p. 249 ff. and in Massachusetts State Papers, p.
336 ff.

[15] The reader will remember that in the memorial appended
to Otis's Rights of the British Colonies Asserted and Proved, this
passage from Vattel was referred to, and that the house, in the Circular Letter
and in other letters of 1768, had made repeated use of this sentiment. My
reason for calling attention to it here is that I am desirous of making very
plain that this doctrine of fundamental law superior to all governmental
authority had taken hold of the Revolutionary mind. It was, however, by no
means a new or unfamiliar belief.

In the preceding pages attention has been given to the developing
conception of federalism; but the treatment is incomplete. The author presented
the subject and considerable evidence in a paper already referred to —
"The Background of American Federalism", Am. Pol. Sci. Rev., XII, pp.
215-240. The evidence there given (though again there was no attempt to present
everything) appears to be enough to bring out the fact that the principle of
federalism was at stake, at least so far as it embodied the idea of the
distribution of authority; and it appears plain (1) that the forms and
practices of the old empire were a distinct foreshadowing of the American
constitutional system of federalism; (2) that the colonists almost to the last
were content with what they had been accustomed to under the old imperial
system which had never been formulated or diagrammed. "Every advantage that
could arise from commerce they have offered us without reserve; and their
language to us has been — 'Restrict us, as much as you please, in
acquiring property by regulating our trade for your advantage; but claim
not the disposal of that property after it has been acquired. — Be
satisfied with the authority you exercised over us before the present reign.' "
Richard Price, Additional Observations on the Nature and Value of Civil
Liberty, and the War With America (London, 1777), p. 76. Notice also the
position of the Pennsylvania convention of 1774. See American Archives
(Peter Force, ed), fourth series, I, cols. 561-562. These are illustrations of
what I believe to be the main fact.